Richmond Virginia School Board v. Virginia Board of Education Reply Brief for Petitioners

    IN THE

l&uproui? (Limrt of to
OCTOBER TERM, 1972

NO. 72-549
SCHOOL BOARD OF THE CITY OF RICHMOND, VIRGINIA, et al.,

Petitioners,

THE STATE BOARD OF EDUCATION OF THE 
COMMONWEALTH OF VIRGINIA, et al.

NO. 72-550
CAROLYN BRADLEY, et al, 

vs.
Petitioners,

THE STATE BOARD OF EDUCATION OF THE 
COMMONWEALTH OF VIRGINIA, et al.

REPLY BRIEF FOR PETITIONERS

GEORGE B. LITTLE 
JAMES K. CLUVERIUS

Browder, Russell, Little & Morris 
1510 Ross Building 
Richmond, Virginia 23219

CONARD B. MATTOX, JR.
City Attorney 
City Hall
Richmond, Virginia 23219

Attorneys for Petitioners 
in No. 72-549

JACK GREENBERG
JAMES M. NABRIT, III
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

LOUIS R. LUCAS
525 Commerce Title Building 
Memphis, Tennessee 38103

WILLIAM A. TAYLOR
Catholic University Law School 
Washington, D.C.

JAMES R. OLPHIN 
214 East Clay Street 
Richmond, Virginia 23219

WILLIAM T. COLEMAN, JR. 
Fidelity-Phila. Trust Building 
Philadelphia, Pennsylvania 19110

M. RALPH PAGE
420 North First Street 
Richmond, Virginia 23219

ANTHONY G. AMSTERDAM 
Stanford University Law School 
Stanford, California 94305

Attorneys for Petitioners
in No. 72-550



I N D E X

Introduction ......... ..... .............................. ...... ......... ........ . 1

A. The Issue of Constitutional Violation   .......  2

B. The Issue of Remedy ............................ .............  13

Co n c l u sio n ................................ ..... ....................... .............  21

T able oe A uthorities

Cases:

Adams v. Richardson, Civ. No. 3095-70 (D.D.C., No­
vember 16, 1972, February 16, 1973) .......... ................  lOn

Brewer v. School Board of Norfolk, 397 F.2d 37 (4th 
Cir. 1968) .................. , ............. ......................................  6n

Brown v. Board of Education, 347 U.S. 483 (1954);
349 U.S. 294 (1955) ............................................. 13n, 17,18

Davis v. Board of School Commissioners of Mobile,
402 U.S. 33 (1971) ........ ...............................................  6n

Green v. County School Board of New Kent County,
391 U.S. 430 (1968) ................. .............................10,11,12

Hall v. St. Helena Parish School Board, 417 F.2d 801 
(5th Cir.), cert, denied, 396 U.S. 904 (1969) ........... 12n

James v. Valtierra, 402 U.S. 137 (1971) ......................  5n

Kelley v. Metropolitan County Board of Education,
436 F.2d 856 (6th Cir. 1970), 463 F.2d 732 (6th Cir.), 
cert, denied, 409 U.S. 1001 (1972) ...................... .....  12n

Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965) ....... .....  lOn

PAGE



11

Lemon v. Bossier Parish School Board, 446 F.2d 911
(5th Cir. 1971) .............................................................. l ln

Lemon v. Kurtzman, 41 U.S.L.W. 4467 (U.S., April 
2, 1973) .............................. ........... ................................... 16n

Raney v. Board of Education, 391 TJ.S. 443 (1968) ....11,12

San Antonio School District v. Rodriguez, 41 TT.S.L.W.
4407 (U.S., March 21, 1973) ...................................... 16,18

Singleton v. Jackson Municipal Separate School Dis­
trict, 348 F.2d 729 (5th Cir. 1965) ....... ......................  lOn

Swann v. Charlotte-Mecklenburg Board of Education,
402 TJ.S. 1 (1971) ..................................................5n, 11,12

Swann v. Charlotte-Mecklenburg Board of Education,
453 F.2d 1377 (4th Cir. 1972) ....................................  12n

Swann v. Charlotte-Mecklenburg Board of Education,
431 F.2d 138 (4th Cir. 1970), rev’d 402 TJ.S. 1 (1971) 9n

United States v. Aluminum Company of America, 148
F.2d 416 (2d Cir. 1945) ........  8n

United States v. Board of School Commissioners of 
Indianapolis, No. 72-1031 (7th Cir., February 1,
1973), aff’g 332 F. Supp. 655 (S.D. Ind. 1971) ____ 8n

United States v. W.T. Grant Co., 345 U.S. 729 (1953) 8n

Wright v. Board of Public Instruction of Alachua
County, 445 F.2d 1397 (5th Cir. 1971) ..................... lln

Wright v. Council of the City of Emporia, 407 U.S.
451 (1972) .......................................................................  16n

Other Authorities:

Department of HEW, The Effectiveness of Compen­
satory Education, Summary and Review of the Evi­
dence (1972) .....................................................................  19

PAGE



Ill

Jencks, C., et al., Inequality (1972) ................. .............  18n

Mosteller, F. and Moynihan, D. (Eds.), On Equality of 
Educational Opportunity (1972) ......................... ......  18n

Office of Education, Equality of Educational Opportu­
nity [The Coleman Report] (1966) ______________  18n

“Perspectives in Inequality,” 43 Harvard Educational 
Review (No. 1, February, 1973) ................................ 19n

U.S. Civil Rights Commission, The Diminishing Bar­
rier; A  Report on School Desegregation in Nine 
Communities (1972) ............ ............... ....... .......... .......  I9n

U.S. Civil Rights Commission, Five Communities: 
Their Search for Equal Education (1972) ...............  19n

U.S. Civil Rights Commission, Racial Isolation in the 
Public Schools (1967) ............... ...................................  18n

Washington Star-News, February 13, 1973 .............. . 20n

*

PAGE



I n t h e

(tart of fir? lotted Us
October T eem , 1972

No. 72-549

S chool B oaed oe th e  C ity  of R ichm ond , V irginia , et al.,

VS.

Petitioners,

T h e  S tate B oaed of E ducation of th e  Com m onw ealth  
of V irginia , et al.

No. 72-550

Carolyn B radley, et al.,

vs.
Petitioners,

T h e  S tate B oaed of E ducation of the  Com m onw ealth  
of V irginia , et al.

REPLY BRIEF FOR PETITIONERS

Introduction

The Briefs of the petitioners and respondents and the 
Memorandum of the United States1 exhibit marked dis-

1 Throughout this Reply Brief, in addition to the abbrevia­
tions in citations previously employed by the parties (see the first 
footnote in each of the Briefs of the parties), the opening briefs 
and the government’s memorandum will be identified as follows:



2

agreement in the framing of the decisive issues of this 
case. They are, however, in agreement upon a number 
of points. We devote this Reply Brief to a canvass of 
the agreements and disagreements, in the hope that, by 
focusing the controversy between the parties, we may 
facilitate the Court’s resolution of it.

Petitioners and the United States are in substantial 
agreement as to the precise issue involved: whether the 
relief decreed constituted an abuse of the remedial powers 
of the District Court. (See U.S. Br. 2, 4.) However, both the 
respondents’ characterization of the issue as one of “viola­
tion” and the manner in which they (and the United States) 
analyze the District Court’s exercise of remedial discre­
tion, create unwarranted confusion. The predicate of re­
spondents’ and the government’s arguments—namely, that 
all vestiges of discrimination had been eliminated and that 
the Richmond, Henrico and Chesterfield school systems 
were “unitary” when these proceedings were brought—is 
demonstrably false on this record.

A. The Issue of Constitutional Violation

1. Respondents construct the major part of their argu­
ment upon the proposition that “before the federal ju­
diciary can intervene in local school affairs the existence 
of a constitutional violation must be established by way 
of predicate for its action.” (St. Br. 50.) Petitioners 
entirely agree. (See PL Br. 62-66; RSB Br. 91.) The 
disagreement between the parties concerns not the need 
for, but rather the identity of, the relevant constitutional 
violation in this case. (See PI. Br. 57; RSB Br. 76-77.)

Brief for plaintiffs (Petitioners in No. 72-550) as “PL Br. ------
Brief for the Richmond School Board (Petitioners in No. 72-549)
as “RSB Br. ------ ” ; Brief for the state and county defendants
(Respondents in both cases) as “ St. Br. ------ and the govern­
ment’s memorandum as “U.S. Br. ------ .”



3

2. Petitioners and the District Court see the constitu­
tional violation in relatively simple terms that respon­
dents’ brief strains to overlook. The violation is that 
the public schools of the Commonwealth of Virginia within 
the City of Richmond (as well as in the Counties of Chester­
field and Henrico) were racially segregated by law and 
by the purposefully segregatory acts of state and local 
officials, before 1954, in 1954, and for almost two decades 
thereafter. (See PI. Br. 11-16, 64-66; RSB Br. 30-47, 67-70, 
86-91.) Respondents’ adamant refusal to talk about this 
long-continued, uncontestable de jure segregation does not 
make it go away. Respondents’ silence on the score does 
not make it any less a constitutional violation, or the 
constitutional violation that underlies this protracted liti­
gation. Hence, the only question confronting the District 
Court was how this enduring denial of fundamental con­
stitutional rights could be effectively vindicated. This 
search for an effective remedy provides the lens through 
which all other aspects of this case must be viewed.

3. Much of the respondents’ brief consists of an attempt 
to obfuscate this constitutional violation by the enumera­
tion and refutation of a succession of other possible the­
ories of “ constitutional violation.” (St. Br. 57-87.) Inas­
much as the enumerated theories are neither petitioners’2 
nor the District Court’s, their refutation by respondents 
fails to join issues of any consequence. We agree with a 
great deal of what is said in these pages of respondents’ 
brief, but not with its relevance to this case. The petitioners

2 Respondents argue, based on evidence introduced to demon­
strate the effectiveness and feasibility of a desegregation plan 
which crossed school division boundary lines—the only desegrega­
tion plan of this nature put before the District Court—not that 
the remedy is ineffective or impracticable, but that this evidence 
was elicited by the petitioners and employed by the District Court 
to establish constitutional violations.



4

have never maintained that any constitutional violation 
flows from the absence of a “viable racial mix” (St, Br. 
58-61) ;3 or from the mere fact that there are concentra­
tions of blacks in Richmond and whites in Henrico and 
Chesterfield (St. Br. 61-72) ;4 or from the mere proximity

3 We have never argued that the Constitution requires the assign­
ment of any fixed or specific percentages of black and white chil­
dren to a school or schools (see PL Br. 58-59; RSB Br. 76-77), and 
the District Court neither found nor ordered any such thing (see 
PI. Br., App. A, la-5a; RSB Br. 50-51). Respondents here pursue 
their tactic, largely successful in the Court of Appeals (see PI. Br. 
50-51; RSB Br. 51-52), of confusing the reasons for the Richmond 
School Board’s proposal of a particular form of inter-division de­
segregation plan (which included, quite properly, educational as 
well as constitutional considerations, see St. Br. 18-32) with the 
District Court’s distinct reasons for concluding that some form of 
inter-division desegregation plan was necessary (which were, with 
equal propriety, entirely constitutional reasons). Respondents cor­
rectly note that the District Court quoted testimony of Dr. Pet­
tigrew and other educational experts concerning a “viable racial 
mix” or enrollment proportion likely to remain stable (St. Br. 30- 
31). They ignore (1) that these quotations occur in the extensive 
“additional findings of fact as supplemental to [the District 
Court’s] . . . general findings of fact” (338 F. Supp., at 116-230, 
Pet. A. 185-545), in which virtually all of the evidence in this 
voluminous record is recalled and appraised, rather than in the 
portion of the court’s opinion describing the factual and legal bases 
of its constitutional ruling (338 F. Supp., at 79-116, Pet. A. 185- 
263) ; (2) that the District Court was necessarily concerned with 
the educational soundness of the Richmond School Board’s plan, 
in addition to (not as a prerequisite of, see note 2 supra) its satis­
faction of constitutional objectives (e.g., 338 F. Supp., at 115, Pet. 
A. 262-63) ; and (3) that the District Court expressly held:

While the viable racial mix contemplated by the plan is ed­
ucationally sound and would indeed result in a unitary sys­
tem, variations from the suggested viable mix may be un­
avoidable. All parties are admonished that it is not the 
intention of the Court to require a particular degree of racial 
balance or mixing. (338 F. Supp., at 230, Pet. A. 519-20).

4 Petitioners need not claim, on this record, that “ [Concentra­
tions of blacks in cities and whites in suburbs . . .  of itself . . . 
[constitutes] a constitutional violation”  (St. Br. 61), or that the 
mere “proximity of majority-black to majority-ivhite schools . . . 
[affords] a constitutional violation”  (St. Br. 85). These conten­
tions continue to be “ as much beside the point in Richmond, Yir-



of majority-black schools to majority-white schools (St. Br. 
85-86) ;4 or from the strong community of interest between

ginia as it would have been beside the point in Swann to consider 
whether, without more, a State’s use of the neighborhood school 
system violates the Constitution as applied to neighborhoods of 
differing racial concentration” (PL Br. 58; see id., 57-61, 73-77). 
The close proximity of identifiably “black” and “white” schools 
on either side of the Richmond City boundary lines (PI. Br. 8-10, 
67, 86-87; RSB Br. 29-30), and the increasing concentration of 
blacks in the center-city ghetto of Richmond (PI. Br. 30-35, 95-97, 
App. F, l f -4 f ; RSB Br. 22-27, 68-70) were factors that added 
enormously to the difficulty of desegregating the Richmond area 
schools, and they were therefore properly considered by the District 
Court in its efforts to arrive at an effective desegregation plan. So, 
too, the District Court properly considered the prospect that a 
Richmond-only desegregation plan would hasten the conversion of 
the City into an all-black ghetto. (See PI. Br. 30-33, 67-68, 96; 
RSB Br. 69-70.)

But these factors are not—and neither petitioners nor the Dis­
trict Court have ever asserted that they were—independent, isolated 
violations of the Constitution which alone justify the relief decreed. 
For this reason, respondents’ invocation of James v. Valtierra, 402 
U.S. 137 (1971) (St. Br. 69) as the response to extensive evidence 
of racial discrimination in housing in the Richmond area (see PI. 
Br. 33-35; RSB Br. 38-44, 67-69) is wide of the mark. In the first 
place, it is not correct, as respondents imply, that the exclusion of 
blacks from housing in the counties is entirely a matter of the un­
availability of low-cost housing. For example, the federally as­
sisted, moderate rental multi-family housing which is located in 
the counties is virtually all-white (PX  129, 130). The District 
Court also could properly infer from the unrebuttted testimony of 
black witnesses (A. 461-67; 21 R. 42-49), the long-maintained 
racially discriminatory real estate advertising policies of Richmond 
newspapers (PX  42) and other evidence of pervasive racial dis­
crimination (see generally, PL Br. 33-35) that Dr. Taeuber was 
correct in his testimony (A. 632) that the highly segregated nature 
of the greater Richmond community was not attributable solely to 
the effect of economics. And unlike respondents’ assumptions that 
restrictive covenants ceased to affect housing patterns after 1950 
(St. Br. 67), the District Court considered both expert testimony 
to the contrary (A. 736-39) and statements to the contrary by the 
President of the United States and the Assistant Attorney General 
(PX  90, 126). Thus housing discrimination—like the other forms 
of overt racial discrimination which this record establishes are 
pervasive in the Richmond area—could properly be considered by 
the District Court in projecting that a school desegregation plan



6

Richmond, Henrico and Chesterfield (St. Br. 71-72) ;5 or 
from the failure of the respondents to offer an alternative 
plan of inter-divisional desegregation (St. Br. 84) ,6 Largely

limited to Richmond City would spawn exclusionary practices de­
signed to keep blacks out of the counties. (See PI. Br. 96-97.) But, 
in any event, the inability of blacks to find housing in the counties, 
whether it results from racial discrimination or from economic dis­
advantages (see PI. Br. 91-93 n. 158), was an appropriate con­
sideration for the District Court in determining the. likely “ effec­
tiveness” {Davis, 402 U.S. at 37) of a Richmond-only plan to deseg­
regate the area’s schools. (See PI. Br. 86-98; RSB Br. 70-72.) 
Cf. Brewer v. School Board of Norfolk, 397 F.2d 37 (4th Cir. 1968).

6 Petitioners made no such argument, either below or in our orig­
inal briefs. Significantly, respondents do not direct the Court to 
any portions of the District Court’s opinion (see St. Br. 71-72), 
for there is nothing in that opinion which even remotely suggests 
“ that a single community of interest in Richmond and the adjacent 
counties gives rise to a constitutional requirement” of an inter­
division plan (St. Br. 71). Rather, the District Court quite cor­
rectly took account of the interdependence throughout the area in 
gauging the degree to which schools remained racially identifiable 
at the time of its decree and in weighing the feasibility of an inter­
division plan. (See PI. Br. 92-95; RSB Br. 62-64.)

6 Petitioners’ briefs noted that the Richmond Board’s plan was 
the only inter-division plan put before the District Court, not­
withstanding ample opportunity was afforded to all parties to sub­
mit alternative plans. (PI. Br. 46, 61-62, App. B, lb-3b; RSB 
Br. 47-48, 70-71.) Because a district court’s approval of the only 
constitutionally adequate plan proposed by any party manifestly 
does not constitute an adoption by the court of that party’s non­
constitutional reasons for preferring the plan to other possibly con­
stitutional alternatives, we had hoped that the respondents might 
appreciate the irresponsibility of confusing, on this record, (i) the 
Richmond School Board’s educational objectives in selecting the 
plan, with the District Court’s constitutional objectives in approv­
ing it (see PL Br., App. A, 4a), or (ii) the consolidation form 
of plan chosen by the school board for reasons of practicality (A. 
240) with “any general assertion [by the District Court] of a 
sweeping power . . .  to ‘compel one of the States of the Union to 
restructure its internal government’ ” (PI. Br. 61; see id., App. B, 
lb-3b). Respondents nevertheless persist in promoting both con­
fusions—the first of which is the basis of their “viable racial mix” 
argument discussed in note 3 supra, and the second of which ap­
pears in their extravagant formulation of the political question-



7

uncontradicted evidence of these facts was properly con­
sidered by the District Conrt in determining that Richmond- 
only desegregation plans would not be effective and that 
the plan proffered by the Richmond School Board was the 
only alternative before the court holding out any promise 
of providing effective relief. But this evidence was not 
taken by the District Court to establish new and indepen­
dent constitutional violations.

We agree in part and disagree in part with the last 
two propositions stated in respondents’ needless and fruit­
less quest for a “ constitutional violation.” It is true that 
the “ failure”  of “ the State Board [of Education] . . . to 
consolidate the three systems . . . did not violate the Con­
stitution,” standing alone (St. Br. 79; see id., 79-84). But 
the cooperation of Virginia’s several educational authori­
ties in numerous segregatory schemes that ignored local 
school division lines, while standing solidly upon those 
lines as bulwarks against desegregation, was, of course, 
one of the many means by which the Commonwealth his­
torically promoted separation of the races in the public 
schools and resisted its termination. (See PI. Br. 84-86; 
RSB Br. 64-66.) “History does not afford a constitutional 
violation”  (St. Br. 73; see id., 73-78) if viewed with the 
supercilious anachronism that mentions Virginia’s “mem­
bership in the Confederacy during the Civil War” (St. Br. 
73) and glosses disingenuously over everything that fol­
lowed. But the recent history of Virginia’s unremitting 
hostility and resistance to school desegregation (PI. Br. 
11-16, 18-22; RSB Br. 32-44) is plainly relevant both to 
the racial identifiability of disproportionately black schools 
today and to the choice of means necessary to disestablish

Tenth Amendment argument advanced at St. Br. 103-04—while 
they erect and instantly demolish “ failure . . . to offer an alternative 
plan”  as an independent claim of constitutional violation. The 
claim is none of ours.



8

them. (See PL Br. 86-97; RSB Br. 77-91). To assert the 
contrary simply insults the intelligence of the Court as well 
as the sensibilities of a People brutalized by having to 
witness the entire governmental machinery and public life 
of a State committed overtly to resisting the constitutional 
command that they be treated decently and equally as 
American citizens.

4. Respondents, and the United States to a somewhat 
lesser degree, also seek to obscure and avoid the continu­
ing constitutional violation by asserting that it does not 
warrant the relief fashioned by the District Court because 
the “ three distinct school systems involved in this case are 
no longer dual systems; each is a unitary system” (St. Br. 
52; see id., 50-88).7 Logically, this assertion begs the ques­
tion, of course; factually, it ignores the specific, detailed 
findings to the contrary of the District Court (see PI. Br. 
42-44, 64-66; RSB Br. 12, 37-43, 69, 104-06) that all three 
school divisions, whether considered separately or together, 
remained segregated at the time when the county and state 
defendants were brought before the court and when relief 
against them was ordered;8 legally, the argument rests

7 The assertion by the United States that the District Court “as­
sumed” or “presumed” that all three systems were operating* unitary 
systems (U.S. Br. 2, 8, 9, 10) is negated by the very portion of the 
lower court’s opinion cited by the government (338 F. Supp., at 
104, Pet. A. 238), which is set out in full in text at p. 13 infra. 
Interestingly, the United States nowhere in its Memorandum itself 
advances the thesis that any of these school divisions had become 
“unitary” during this litigation. Compare U.S. Br. 7 n. 8, 17.
_8 Ordinarily, the existence of a legal violation or other condition 

giving rise to a cause of action is determined as of the time litiga­
tion is filed. E.g., United States v. Board of School Commissioners 
of Indianapolis, No. 72-1031 (7th Cir., February 1, 1973), slip op. 
at p. 13, ajf’g 332 F. Supp. 655 (S.D. Ind. 1971) ; United States 
v. Aluminum Company of America, 148 F.2d 416 (2d Cir. 1945) • 
cf. United States v. W. T. Grant Co., 345 U.S. 629 (1953). As we 
pointed out in our opening briefs (PI. Br. 64-66; ESB Br. 69),



9

upon a misrepresentation of the meaning of the District 
Court’s findings as to Richmond,9 and upon a misconcep­
tion that HEW satisfaction with the belated desegregation 
plans for Henrico and Chesterfield also satisfied the Con-

there is no issue as to an initial violation. And the Court of Ap­
peals agreed that there was a continuing, unremedied violation at 
the time of joinder (see 462 F.2d, at 1065, Pet. A. 571-72). There 
was, therefore, no lack of power in the District Court to fashion 
an appropriate remedy. In any event, as the District Court found, 
racially segregated schools within each division had not been dis­
established effectively even at the time the decree was entered.

9 By isolating various portions of the District Court’s August 17, 
1970 opinion and April 5, 1971 opinion from their context, re­
spondents seek (St. Br. 6-16) to convey the impression that the 
District Judge had been fully satisfied that an effective, operable 
plan for Richmond had eliminated all vestiges and effects of school 
segregation—and thereafter ordered the plan changed because he 
accepted educational, nonconstitutional justifications for the 
change. Study of the entire opinions demonstrates the inaccuracy 
of this characterization.

The District Court’s August 17, 1970 comments regarding the 
estimated efficacy of the Poster Plan (St. Br. 14) were intended 
to emphasize the contrast between the relative effectiveness of the 
plaintiffs’ plan and those which had theretofore been submitted by 
the Richmond School Board. It deserves emphasis that the court’s 
remarks were made in the light of then governing law in the Fourth 
Circuit, Swann v. Charlotie-Mecklenburg Board of Education, 431 
F.2d 138 (4th Cir. 1970), rev’d 402 U.S. 1 (1971); thus, the refer­
ence to “no intraetible remnant of segregation in the City of Rich­
mond” which could not be reached within a reasonable busing time.

These comments were made entirely without reference to, or con­
sideration of, the question whether a plan which achieved the max­
imum feasible desegregation within Richmond might yet fail to 
fully satisfy the Constitution in light of the particular circum­
stances later developed on this record. No pleadings addressed to 
that issue were pending at the time of the court’s ruling (an ear­
lier motion to file a third-party complaint against the county school 
boards was withdrawn August 7, 1970 [A. 17, 19]) ; neither the 
counties nor the State Board (parties the District Court later 
held should be joined before the issue was decided) was yet rep­
resented in the litigation (see 36 R .; 51 F.R.D. 139, Pet. A. 48-57). 
With respect to the District Court’s April 5, 1971 opinion, we 
detailed the explicit reservations delineated by the court in our 
opening briefs (PI. Br. 38-39, n. 62; RSB Br. 10-11).



10

stitution.10 * But the more basic failing of respondents’ 
approach is that it wholly misconceives the meaning of a 
“unitary” school system, and the time at which a formerly 
dual system can be said to have achieved a “unitary” 
character.

Green v. Comity School Board of New Kent County, 
391 U.S. 430, 439 (1968) requires (1) consideration of 
all feasible alternative plans of desegregation; (2) se­
lection of the option offering the greatest promise of ef­
fective relief; (3) evaluation in actual practice of the 
plan selected; and (4) its modification, or the selection 
of other alternatives, if evaluation demonstrates that the 
plan has proved ineffective to eliminate racially identi-

10 While eourts have often said the HEW guidelines are entitled 
to “ great weight” in evaluating the progress of desegregation, e.g., 
Singleton v. Jackson Municipal Separate School District, 348 F.2d
729 (5th Cir. 1965) ; Kempv. Beasley, 352 F.2d 14 (8th Cir. 1965), 
the responsibility to adjudicate has never been abdicated to the ad­
ministrative agency. See Lee v. Macon County Board of Education, 
270 F. Supp, 859 (M.D. Ala. 1966) ■ Kemp v. Beasley, supra, 352 
F.2d at 19: “ It is for the courts, and the courts alone, to deter­
mine when the operation of a school system violates rights guar­
anteed by the Constitution.” Several factors in this case support 
the District Judge’s determination to probe further than the prof­
fered “ HEW approval” of Henrico and Chesterfield schools. The 
exhibits referred to by respondents (St. Br. 10-12) respecting 
Henrico, for example, demonstrate that HEW’s characterization of 
the system as “unitary” in 1969 (Ex. A. 97e) was no bar to the 
requirement by the agency of further desegregation measures in 
1970 and 1971 (Ex. A. 99e, 103e). Furthermore, the District Court 
had reason to believe in the light of this litigation that HEW 
might be applying less stringent standards than the Constitution 
required. See 317 F. Supp., at 563-66, Pet. A. 13-20. The same 
conclusion has been reached by another district court in a lawsuit 
brought to compel compliance with the law by the agency. Adams 
v. Richardson, Civ. No. 3095-70 (D.D.C., November 16, 1972 [memo­
randum opinion], February 16, 1973 [order]). And in any event, 
the District Court found that vestiges of the dual system remained 
in each of the counties at the time of the hearing and that they 
were not “unitary” when its decree was entered.



11

liable schools.11 The notion of a “unitary” system was 
carefully explained in Stvann in both conceptual and op­
erational terms. Conceptually, it describes a system that 
has “ achieved full compliance with this Court’s decision 
in Brown I.” {Swann, 402 U.S., at 31). Operationally, it 
describes a finding whose consequence is that a federal 
district court must dismiss a school desegregation case 
as closed and finished business. {Swann, 402 U.S., at 31- 
32.) But in light of Green, Raney v. Board of Education, 
391 U.S. 443 (1968), and cognate cases,12 it is perfectly 
plain that the finding of “unitary” character and conse­
quent dismissal cannot come so soon as a plan has been

11 Thus unitary status is not achieved with initial selection of a 
plan, but only when it has been shown that the plan is fully ef­
fective in practice or that no feasible alternatives promising .greater 
prospect of effective relief are available. As the District Court 
stated,

Against this background the “desegregation” of schools within 
the city and the counties separately is pathetically incomplete. 
Not only is the elimination of racially identifiable facilities im­
possible of attainment, but the partial efforts taken contain 
the seeds of their own frustration. As before, and as courts 
have seen happen elsewhere and sought to prevent, racially 
identifiable black schools soon became almost all black; Rich­
mond has lost about 39% of its white students in the past two 
years. Time and again courts have rejected half-measures as 
insufficient to fulfill school authorities’ affirmative duty, well 
aware that otherwise the achievement will be only temporary. 
That school authorities may even in good faith have pursued 
policies leading to some desegregation and may in fact have 
achieved some results does not relieve them of the remainder 
of their affirmative obligation. Clark v. Board of Education 
of Little Bock School District, 426 F.2d 1935 (8th Cir. 1970). 
If the existing assignment program, he it by freedom of choice, 
a pupil placement system, residential zoning, or some combina­
tion thereof, does not, upon consideration of alternative means, 
work effectively to abolish the dual system, it is legally defec­
tive. [citations omitted] (338 F. Supp., at 103-04, Pet. A. 
237-38). (emphasis added).

12 E.g., Lemon v. Bossier Parish School Board, 446 F.2d 911 (5th 
Cir. 1971) ; Wright v. Board of Public Instruction of Alachua 
County, 445 F.2d 1397 (5th Cir. 1971).



12

adopted which the District Court believes will finally sat­
isfy constitutional requirements. The finding and dismissal 
must wait until the District Court has observed the opera­
tion of the plan in actual practice and has concluded that 
it is working in such a fashion that “ ‘the goal of a de­
segregated, non-racially operated school system is rapidly 
and finally achieved” ’ (391 U.S., at 449).

Palpably, this stage had not arrived in any of the three 
school divisions—Richmond, Chesterfield or Henrico—at 
the time of the District Court’s decree, or of the Fourth 
Circuit’s reversal; nor has it yet arrived in any of the 
three divisions. Therefore, unless the explicit language 
of Green, Swcmn, and Raney is ignored, none of the three 
divisions can be called “unitary” or relieved of the con­
tinuing power of a federal court to modify and extend 
desegregation remedies as needed,13 until full “unitary” 
status is achieved.

It was for this reason that the District Court properly 
concluded that the original constitutional violation of ra­
cially segregated public schools in the Richmond area had 
never been remedied and that the court was empowered 
and obligated to address its remedial process to that con­
tinuing violation with due recognition of the fact that the 
“maintenance of segregation in an expanding community 
. . . creates problems, when a remedy must eventually be 
found, of a greater magnitude in the present than existed

13 E.g., Hall v. St. Helena Parish School Board, 417 F.2d 801 
(5th Cir.), cert, denied, 396 U.S. 904 (1969) (freedom-of-choice); 
Kelley v. Metropolitan County Board of Education, 436 F.2d 856 
(6th Cir. 1970), 463 F.2d 732 (6th Cir.), cert, denied, 409 U.S. 
1001 (1972) (geographic zoning) ; Swann v. Charlotte-Mecklenburg 
Board of Education, 453 F.2d 1377 (4th Cir. 1972) (feeder pat­
terns).



13

at an earlier date . . . (338 F. Supp., at 91, Pet. A. 210).
As the District Judge wrote:14 *

The institution within the three existing school dis­
tricts of something which might in some other context 
pass for desegregation of schools is a phenomenon 
dating at best from the opening of the 1971-72 school 
year, which took place during the trial of this case. 
Prior thereto each system was in some respect non- 
unitary, and the Court is not fully advised as to the 
current status of the county system[s]. Even were 
each existing system, considered in a vacuum, as it 
were, to be legally now unitary within itself, the 
question still remains whether state policy having the 
effect of preventing further desegregation and fore- 
seeably frustrating that which has been accomplished 
to date may be imposed upon a very recently achieved 
desegregated situation. Momentary unitary status— 
assuming it existed here, which has not teen shown—• 
will not insulate a school division from judicial super­
vision to prevent the frustration of the accomplish­
ment. (338 F. Supp., at 104, Pet. A. 238). (emphasis 
added).

B. The Issue of Remedy

1. Respondents apparently agree with petitioners that, 
if a constitutional violation is established upon this rec­
ord, the power of the District Court to remedy it by an 
interdivision desegregation plan is unquestionable. (See 
PI. Br. 62-82.) We take this to be the meaning of re­
spondents’ passing immediately from the issue of “ con­

14 As noted above, see pp. 8, 12, note 11 supra, the District
Court found as a fact that each of the school divisions was non- 
unitary, and further that Richmond could not itself end its non- 
unitary system because of the State’s long delay in commencing 
compliance with Brown. (See PL Br. 88-100.)



14

stitutional violation” (St. Br. 50-87) to the “Factors to 
Be Weighed in Determining the Validity of the District 
Court’s Remedy” (St, Br. 87; see id., 87-104)—factors that 
are meaningful only as a matter of discretion, not of 
power. (See PI. Br. 82-100.) And as we have noted above, 
the government states the issue solely in terms of discre­
tion. (U.S. Br. 2.)

2. The arguments of both respondents and the United 
States addressed to remedy are predicated upon their con­
tention that the District Court approved an inter-division 
desegregation plan for the sole purpose of achieving a 
viable racial mix. (See, e.g., St. Br. 88, 96, 104; U.S. Br. 
2, 9, 11, 17, 21.) We have previously considered this 
assertion in note 3 supra. We reiterate the point here 
because of the pivotal position accorded to the notion 
by respondents and the government.

The District Court was concerned—as a reading of its 
entire opinion or the entire section containing its general 
findings and legal conclusions (338 F. Supp., at 79-116, 
Pet, A. 185-263) will readily make clear—with the effec­
tiveness of a remedy for the long-continued constitutional 
violation.16 Having evaluated in successive, actual opera­
tion (1) the freedom-of-choice plan, (2) the interim plan, 
and (3) Plan III, the court ultimately concluded that inter­
division assignments provided the only realistic means to 
eliminate the persisting racial identifiability of the schools.16

16 The respondents’ and government’s briefs, focusing as they do 
on the non-issue of “violation,” ignore entirely any discussion of 
the effectiveness of the various plans that were put before the Dis­
trict Court.

16 The United States suggests that the District Court engaged in 
circular reasoning by making an initial arbitrary determination to 
look outside Richmond in measuring racial identifiability and then 
deciding that an effective means of eliminating that identifiability 
would require pupil reassignments outside Richmond. (See U.S.



15

The strenuous efforts of the respondents and the United 
States to rewrite the District Court’s opinion (see note 3 
supra) are ultimately futile.17

3. Most of the other factors discussed by the respon­
dents as bearing on the District Court’s exercise of discre­
tion have been canvassed in our principal briefs and need 
not be rehashed here. To the extent that they do not ignore 
or go beyond the record,18 * respondents essentially substi­
tute their own factual or judgmental conclusions for those 
of the District Court, and thereby seek impermissibly to

Br. 13-15.) The government overlooks the facts that the District 
Court was concerned with: (i) the many traditionally black Rich­
mond schools which had never been effectively desegregated, under 
free choice, the interim plan or Plan III, and which therefore 
presumptively retained their racial identities (see PI. Br. 5-6, 11-13, 
43, 89-90; RSB Br. 24-25, 36-37, 69); (ii) the evidence reinforcing 
that presumption of identity, i.e., the testimony defining the nature 
of racial identifiability and how it is perceived (see PI. Br. 67, 86- 
100; RSB Br. 62-64) ; (iii) the evidence indicating the permeability 
for all other community concerns of the city-county boundary lines 
(see PI. Br. 25-29, 94-95; RSB Br. 15-22) ; and (iv) the evidence 
indicating that the lines were freely crossed by the community’s 
educators for valid educational purposes and had been so crossed 
in the past for the invalid purpose of segregation (see PI. Br. 22- 
24, 29, 84-86, App. E, le-5e; RSB Br. 64-67, 77-82). It was this 
complex of factors and not an arbitrary preference for majority- 
white schools which led the District Court to explore “ racial iden­
tifiability” in the context of the greater Richmond area.

17 The distortion of the District Court’s opinion required by 
these efforts is indicated by the Fourth Circuit’s comment that the 
District Court “apparently adopt [ed] Dr. Pettigrew’s viable racial 
mix theory,” 462 F.2d, at 1063 n. 4, Pet. A. 568. That is simply 
not supported by a fair reading of the District Court’s general find­
ings and conclusions of law (338 F. Supp., at 79-116, Pet. A. 
185-263).

18 Compare, e.g., St. Br. 89-90 with PI. Br. 30-33, 90-97, App. F,
lf-4f, and RSB Br. 22-27, 69-70, 107-08; St. Br. 92-98 with PI. Br., 
App. C, lc-3c, App. D, ld-3d, App. E, le-5e, and RSB Br. 32-34, 
48-50; St. Br. 98-100 with PI. Br. 22-23, 47-48 n. 67, 68-69 n. 100, 
and RSB Br. 52-53, 79 n. 75; St. Br. 100-02 with PI. Br. 83 n. 135, 
App. D, 2d-4d, and RSB Br. 106-07.



16

upset that court’s “broad discretionary power” in “ shaping 
equity decrees.” 19

4. One point only at St. Br. 87-104 and U.S. Br. 17-21 
seems to us to call for a reply. This is the assimilation of 
San Antonio School District v. Rodriguez, 41 U.S.LW. 
4407 (U.S., March 21, 1973), to respondents’ own concep­
tion of “ local control.” (St. Br. 92-93; U.S. Br. 20-21.) We 
have already pointed out at PL Br. 22-24, 84-86, App. E, 
le-5e; RSB Br. 64-67, 77-82, that “ local control” in Vir­
ginia is an accordion which collapses or expands as re­
quired to pipe the tune of racial segregation and resistance 
to desegregation in the public schools. For the one thing 
that is clear on this record is that from 1870 to the time 
of the District Court’s decision, with respect to racial mat­
ters all school divisions either acceded to the directives 
of, or surrendered control to, state authorities. We have 
also noted that, to the extent that “ local control” is a real 
concern and is not “racially based” (see PI. Br. 85, n. 137; 
RSB Br. 78, n. 73), it is amply accommodated by the spe­
cific provisions of the Richmond School Board plan ap­
proved by the District Court.20

19 Lemon v. Kurtzman, 41 U.S.L.W. 4467, 4469 (U.S., April 2, 
1973, opinion of the Chief Justice).

20 See PI. Br., App. C, le-3c, App, D, ld-3d, App. E, le-5e; RSB 
Br. 32-34, 48-’50. To summarize, consolidation was preferred by 
the Richmond School Board in part because it allowed greater 
local control than inter-division assignment pursuant to contract. 
(338 F. Supp., at 84, 191, Pet. A. 195, 430; see PI. Br. 61-62; 
RSB Br. 49-50.) Cf. Wright v. Council of the City of Emporia, 
407 U.S. 451, 454-55 (1972). The Board’s plan also provides for 
the creation of six administrative subdivisions, each with its own 
local board to which are delegated decision-making powers over 
various curricular and administrative matters—the very method 
which has proved effective in Fairfax County, Virginia. (See 338 
F. Supp, at 191-92, Pet. A. 430-31; PI. Br. 47-48, App. D, 3d; RSB 
Br. 49, 106.) Respondents’ assertions of financial difficulties must



17

5. We address finally respondents’ argument that “ [t]his 
Court must not say that black majority schools are in­
trinsically inferior or that black majority schools impose 
a feeling of inferiority on those black students who attend 
them” (St. Br. 48; see id., 75-78, 85-86). The argument 
would lie better in the mouths of persons who had not 
penned black children into segregated schools during dec­
ades before and after Brown, and who now advance it in 
the service of perpetuating that same segregation. The 
sly suggestion that “ it is the N.A.A.C.P.” (St. Br. 76; sic) 
which has latterly invented the inferiority and degradation 
of the Southern “black” school requires neither analysis nor 
response. It is a patent outrage.

In Brown, after noting the finding of the lower court in 
the Kansas case that “ segregation of white and colored 
students has a detrimental effect upon the colored children 
[and that the] . . . impact is greater when it has the sanc­
tion of the law; for the policy of separating the races is 
usually interpreted as denoting the inferiority of the negro 
group . . .  ” , this Court stated:

Whatever may have been the extent of psychological 
knowledge at the time of Plessy v. Ferguson, this find­
ing is amply supported by modern authority. Any lan­
guage in Plessy v. Ferguson contrary to this finding is 
rejected. * *

be weighed against the total lack of any such problems in the ad­
ministration of joint and regional schools throughout Virginia for 
many years (see PI. Br. 22-23; RSB Br. 64-65), in light of the 
existence of state laws dealing specifically with the allocation of 
financing responsibility in a consolidated school system (see Pet, 
A. 611-12, 621; PI. Br. App. D, 3d; ESB Br. 1.06-07), and in 
light also of the present power of state officials to require levels 
of expenditure sufficient to meet state-mandated minimum stan­
dards of educational quality (see Pet. A. 621-22; PI. Br. App. C,
lc  n. lc, App. D, 3d-4d).



18

Respondents and the government apparently seek to cast 
doubt on the continued vitality of this finding through gen­
eral and vague reference to a body of contemporary educa­
tional research (St. Br. 76-77; U.S. Br. 11). The relevance 
of their assertion to this case is dubious at best since this 
Court has never held it a prerequisite to relief dismantling 
a dual school system that black plaintiffs demonstrate they 
have suffered specific psychological harm in segregated 
schools or will make specific gains in integrated schools. 
The assertion also disregards, of course, the abundant tes­
timony in this record, credited by the District Court, sup­
porting the conclusion that racially identifiable schools do 
harm black children. (See RSB Br. 83-87.)

In any event, the implication that current educational 
research is at odds with the finding of Brown does not stand 
examination. Indeed, every major study conducted since 
1954 supports and reinforces the conclusion that racial seg­
regation in the public schools adversely affects the motiva­
tion and educational development of black children.21

Some researchers have questioned past assumptions that 
public schools are a principal instrument for establishing 
equality of status and condition. Some have challenged the 
notion that there is a demonstrable correlation between 
educational expenditures and the quality of education. See 
authorities cited in San Antonio School District v. Rodri­
gues, 41 U.S.L.W. at 4420. All, however, agree that racial 
composition of the classroom is a critical school factor in 
determining educational outcomes.22 HBW’s most recent

21 See Office of Education, Equality of Educational Opportunity 
[The Coleman Report] 302-10 (1966) ;  U.S. Commission on Civil 
Rights, Racial Isolation in the Public Schools 96-114 (1967); 
Mosteller and Moynihan (Eds.), On Equality of Educational Op­
portunity 41 (1972); Jeneks et al., Inequality 102, 109 (1972). 23

23 Jeneks, for example, concludes that the elimination of “racial 
and socio-economic segregation in the schools might reduce the test



19

report on the subject, after reviewing evidence compiled in 
several communities, summarizes the findings as follows:

“ [EJvidence of gains [through desegregation] combined 
with the absence of alternative educational strategies 
with demonstrated superior effectiveness, suggests the 
high educational importance for desegregation in im­
proving black academic achievement . . . ” (Department 
of HEW, The Effectiveness of Compensatory Educa­
tion, Summary and Review of the Evidence 176 
(1972)).

Practical experience in communities that have desegre­
gated their schools supports the research findings that de­
segregation is beneficial and negates the veiled suggestion 
that the plan approved here may be politically unworkable. 
In two 1972 studies covering fourteen school districts that 
had implemented desegregation plans, the U.S. Commis­
sion on Civil Rights found that students “have adjusted 
quickly and smoothly to the new school environment, often 
despite fears and anxieties of their parents,” that “ school 
desegregation had begun to make inroads on the entrenched 
racial isolation and hostility with which most pupils and 
teachers confronted each other in segregated systems,” that 
communities had taken action often vigorous and creative to 
head off problems, and that there was “widespread accept­
ance of desegregation by those most intimately involved in 
the educational process—the students and the teachers.” 23 * 23

score gap between black and white children and between rich and 
poor children by 10 to 20 percent.” See also “Perspectives on 
Inequality,” 43 Harvard Educational Review (No. 1) at 39 If. (Feb­
ruary, 1973).

23 U.S. Commission on Civil Rights, Five Communities: Their 
Search for Equal Education 1-2 (1972) ; U.S. Commission on Civil 
Rights, The Diminishing Barrier; A Report On School Desegrega­
tion in Nine Communities 1-3 (1972). The fourteen communities



20

In snm, the issue in this case, as the government acknowl­
edges, is a constitutional one. The research findings of edu­
cators and sociologists were relevant only as considerations 
for the district court to weigh in determining the most 
appropriate form of relief after finding a constitutional 
violation. The government’s suggestion that the courts are 
being asked to choose among “various educational and 
sociological theories” (U.S. Br. 12) is a smoke screen.

We submit that the scope of remedial discretion should 
still be defined in terms of the feasibility of available alter­
natives, and that on this record inter-division assignments 
have been established as feasible, workable and education­
ally sound. The use of inter-division assignments as a de­
segregation tool in this case will provide the only means 
of avoiding the stark reality of black schools in Richmond, 
and white schools in Henrico and Chesterfield. Yet such 
assignments may be effected without expanding the time 
or distance of pupil transportation presently afforded 
within the individual school systems.

included several, e.g., Charlotte-Mecklenburg, Tampa-Hillsborough, 
whose plans are similar to the plan adopted in this case. Experience 
with a desegregation plan implemented in January, 1973 in Prince 
Georges County, Maryland, the tenth largest school district in the 
nation, has also been positive. See, e.g., Washington Star-News, 
February 13, 1973, p. B-l.



21

CONCLUSION

For the foregoing reasons, and those set out in the prin­
cipal briefs of the petitioners, the judgment of the Court 
of Appeals should be reversed.

Respectfully submitted,

GEORGE B. LITTLE 
JAMES K. CLUVERIUS 

Browder, Russell, Little 
& Morris
1510 Ross Building 
Richmond, Virginia 23219

CONARD B. MATTOX, JR. 
City Attorney 
City Hall
Richmond, Virginia 23219

Attorneys for Petitioners 
in No. 72-549

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

LOUIS R. LUCAS 
525 Commerce Title Building 
Memphis, Tennessee 38103

WILLIAM A. TAYLOR 
Catholic University 
Law School 
Washington, D.C.

JAMES R. OLPHIN 
214 East Clay Street 
Richmond, Virginia 23219

WILLIAM T. COLEMAN, JR. 
Fidelity-Phila. Trust Building 
Philadelphia, Pa. 19110

M. RALPH PAGE 
420 North First Street 
Richmond, Virginia 23219

ANTHONY G. AMSTERDAM 
Stanford University 
Law School
Stanford, California 94305

Attorneys for Petitioners 
in No. 72-550



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